136 Mass. 174 | Mass. | 1883
This is an action brought against the administrators of Lorenzo N. Granger, upon á bond given to the judge of probate, executed by John W. Smith and George C. Smith as principals, and the said Granger as one of the sureties, the condition being that the principals should faithfully perform their duties as trustees under the will of Cotton Smith. In March, 1879, said trustees having been removed, John C. Hammond was appointed as trustee in their stead, and demanded of them the trust fund in their hands. They refused to deliver it to him. This was a breach of their bond, and thereupon a claim arose against the estate of Granger as surety upon the bond. The defendants gave bond as administrators of said Granger on May 2,1876. More than two years from the date of the defendants’ bond having elapsed, the said Hammond brought a petition, under the Gen. Sts. c. 97, § 8, to the Probate Court, to order the administrators to retain in their hands sufficient funds to satisfy his claim against the estate. The Probate Court thereupon decreed that the administrators should retain in their hands assets sufficient to satisfy the petitioner’s claim, and this decree was affirmed by this court. Hammond v. Granger, 131 Mass. 351. See also Hammond v. Granger, 128 Mass. 272. This decision of the Probate Court is not conclusive against the administrators, and they are not compelled to pay the claim of the creditor, “ unless it is proved to be due in an action commenced by the claimant within one year after the same becomes payable.” Gen. Sts. c. 97, § 9. The petitioner was therefore obliged to bring this action in the name of the judge of probate, to prove that his claim is due. Gen. Sts. c. 97, § 10. The case is submitted upon an agreed statement of facts.
The action being upon a bond, it is clear that the plaintiff is entitled to a judgment for the penal sum. Pub. Sts. c. 171, § 9.
We do not discuss the question whether a creditor situated like the plaintiff has a lien upon the real estate, or could require it to be sold for the payment of his debt, because, upon the peculiar facts of this case, there can be no necessity to resort to the real estate. The liability of the estate arises from the signing by Granger of the bond in suit as a surety of the principal obligors, one of whom, John W. Smith, is one of the administrators. Upon familiar principles, the moment the estate pays anything upon the bond, the said Smith eo instanti becomes indebted to the estate for the amount paid, on his implied promise to indemnify his surety; and, as the administrators have given a joint bond, the sum due by Smith becomes assets of the estate in their hands. Leland v. Felton, 1 Allen, 531. Hazelton v. Valentine, 113 Mass. 472. Tarbell v. Jewett, 129 Mass. 457.
Under the common law, administrators, admitting that they have a balance in their hands of a certain sum, could not plead
In any aspect of this case, we are of opinion that the plaintiff is entitled to such judgment and execution; and that the case must be referred to an assessor, to ascertain the amount justly due upon these principles.
Judgment accordingly.